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Is Germany’s Position on Pre-trial Discovery of Documents under the Hague Evidence Convention Softening?

In 2013, a decision by the President of the Court of Appeals (Oberlandesgericht) Frankfurt led me to speculate whether Germany’s position on the pre-trial discovery of docments under the Hague Evidence Convention is softening. In April 2014, the Federal Ministry of Justice came forward with a proposal to modify Germany’s position on discovery of documents and to allow it in certain circumstances. In this post, I try to summarize the various responses to this initiative.

Under the proposed new regime, a request would be entertained if the documents that are being requested are sufficiently specified, and if it is established that they are relevant to the outcome of the case. The proposed wording reads as follows:

“The Federal Republic of Germany will execute letters of requests pursuant to Article 23 which relate to the discovery of documents only if

a) the documents to be produced are specified in sufficient detail, and

b) it is sufficiently and convincingly established why these documents are relevant to the respective case and its outcome.”

The Ministry had invited various interested parties, amongst them the German-American Lawyers Association (DAJV), to comment on its proposal. The DAJV held a well-attended workshop in Frankfurt to discuss the proposal in June 2014, on the day of Germany’s first match at the Football World Cup against Portugal. You may recall that this was the start of an extraordinary campaign of the German squad culminating in the matches against Brazil and Argentina. The spare time usually allocated to blogging was totally consumed by football – my excuse why I never got round to report on the very interesting and substantive discussions.

The DAJV has since published a substantive paper setting out the background to the discussion, and a summary of the workshop. Here is the outcome of the discussions in a nutshell: About two thirds of the participants, including the industry representatives, argued in favour of the current position, that is, not to allow any pre-trial discovery of documents. About one third was in favour of the proposal, and it was suggested that a public policy exception should be added to the wording of the proposed provision.

In the meantime, other bodies have also come forward with their comments on the proposal:

The Confederation of German Industry (Bundesverband der Deutschen Industrie)* assumes that US plaintiffs will continue to seek discovery under the US rules, rather than utilise the Hague Evidence Convention, but sees one benefit of opening up German law to pre-trial discovery under the convention in German defendants being able to oppose to jurisdictional discovery, if the jurisdiction of the US courts is disputed. The Confederation proposes to modify the language as follows:

“The Federal Republic of Germany will execute letters of requests pursuant to Article 23 which relate to the discovery of documents directed against parties to a dispute only to the extent that the discovery does not violate fundamental principles of German law (in particular basic rights)if

a) the documents to be produced are specified in sufficient detail, an

b) it is sufficiently and convincingly established why these documents are relevant to the respective case and its outcome.

Letters of Request that relate to the discovery of documents in the possession of third parties will not be executed.”

The German Bar Association (Deutscher Anwaltverein) also advocates a narrower wording, to bring the scope of discovery under the Hague Convention in line with the domestic provisions on document production under Section 142 German Code of Civil Procedure (Zivilprozessordnung, ZPO). The German Federal Bar (Bundesrechtsanwaltskammer) argues pretty much along the same lines.

The German Judges Association (Deutscher Richterbund) advocates a restrictive approach, in line with the position taken by the German Bar Association. It, rightly in my opinion, points out that letters of request should be allocated to a dedicated court, to allow for specialised know-how in the judiciary to be developed. Accordingly, jurisdiction should no longer rest with the local court (Amtsgericht) at the domicile of the party from whom the documents are requested. Instead, for the entire district of a Court of Appeal (Oberlandesgericht), a chamber of a district court (Landgericht) should have exclusive jurisdiction to deal with letters of request.

As soon as we hear further on the proposal, in particular, whether it actually makes its way into Parliament, I will let you know!

Last, but not least, let me point to a German language article by David B. Adler, published in IPRax 2015, 364, on the topic.** Adler is rather sceptical whether Germany’s initiative to open itself up to pre-trial discovery of documents will lead to US courts using the Hague Evidence Convention, rather than relying on the Federal Rules of Civil Procedure.

Until today, US and German jurisprudence argue whether US courts are allowed to base discovery orders Of fact on the Federal Rules of Civil Procedure instead of the Hague Evidence Convention, despite the fact that evidence (e.g. documents) is located outside the US but in one of the signatory states. While the one side argues that the Hague Convention trumps the Federal Rules and has to be primarily, if not exclusively, utilized in those circumstances, the other side, especially many US courts, constantly resisted interpreting the Hague Evidence Convention as providing an exclusive mechanism for obtaining evidence. Instead, they have viewed the Convention as offering discretionary procedures that a US court may disregard in favor of the information gathering mechanisms laid out in the federal discovery rules. The Hague Evidence Convention has therefore, at least for requests from US courts, become less important over time.

The German Federal Ministry of Justice and Consumer Protection intends to put this debate to an end and to reconcile the differing legal philosophies of Civil Law and Common Law with regard to the collecting of evidence. It plans to alter the wording of the German blocking statute which, up to this date, does not allow US litigants to obtain pretrial discovery in the form of documents which are located in Germany at all. Instead of the overall prohibition of such requests, the altered statute is intended to allow the gathering of information located in Germany if the strict requirements of the statute, especially the substantiation requirements towards the description of the documents, are fulfilled. By changing the statute, Germany plans to revive the mechanisms of the Hague Evidence Convention with the goal of convincing the US courts to place future exterritorial evidence requests on those mechanisms rather than on the Federal Rules.

The article critically analyses the planned statutory changes, especially with regard to the strict specification and substantiation requirements concerning the documents requested. The author finally discusses whether the planned statutory changes will in all likelihood encourage US courts to make increased usage of the information gathering mechanisms under the Hague Evidence Convention with regards to documents located in Germany, notwithstanding the effective information gathering tools under the Federal Rules of Civil Procedure.

About ….

.... the Blog: "Dispute Resolution Germany" covers litigation, arbitration and mediation in Germany and elsewhere. It is an English-language resource about dispute resolution in Germany as well as a forum for discussions.

.... Peter Bert: I am admitted as Rechtsanwalt in Germany and as a Solicitor in England & Wales. I practice law as a partner in Taylor Wessing's Frankfurt office. See the "About Peter" tab for more detail, or get in touch through linkedin:

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